R. v. J.A.W., (2006) 403 A.R. 254 (PC)

• Judge: Dalton, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 23, 2006
• Citations: (2006), 403 A.R. 254 (PC);2006 ABPC 178

R. v. J.A.W. (2006), 403 A.R. 254 (PC)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JL.059

Her Majesty the Queen (Crown) v. J.A.W. (accused)

(050722255Y101001; 2006 ABPC 178)

Indexed As: R. v. J.A.W.

Alberta Provincial Court

Dalton, P.C.J.

July 10, 2006.

Summary:

The accused young person was charged with assault.

The Alberta Provincial Court held that self-defence had been established under s. 34(1) of the Criminal Code and found the accused not guilty.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 113

Mental disorder - Insanity, automatism, etc. - Intoxication - Section 33.1 of the Criminal Code did not allow an accused to rely on lack of voluntariness where the lack of intent was by reason of self-induced intoxication - The Alberta Provincial Court stated that when relying on s. 33.1, the Crown bore the burden of proving beyond a reasonable doubt that the accused lacked the intent because of intoxication - However, once the Crown did so, a rebuttable presumption arose that the accused's condition was self-induced and the accused bore the evidential burden of pointing to evidence that his intoxication was not self-induced - If the accused could point to such evidence, the burden reverted to the Crown to prove beyond a reasonable doubt that the intoxication was self-induced - See paragraphs 35 to 37.

Criminal Law - Topic 113

Mental disorder - Insanity, automatism, etc. - Intoxication - The accused young person was charged with assaulting a nurse at a hospital where he was being treated for excessive alcohol consumption - The accused argued that he did not have the requisite intent to commit an assault as his actions were involuntary - The Crown referred to s. 33.1 of the Criminal Code, which did not allow an accused to rely on lack of voluntariness where the lack of intent was by reason of self- induced intoxication - The Alberta Provincial Court held that the accused could not rely on the defence of lack of voluntariness - The court was satisfied that the accused lacked the general intent or voluntariness to commit the offence - However, it was also satisfied beyond a reasonable doubt that the accused's lack of voluntariness was due to intoxication - Section 33.1 was therefore engaged - The accused failed to rebut the presumption that his intoxication was self induced - See paragraphs 23 to 38.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence - [See Criminal Law - Topic 1420 ].

Criminal Law - Topic 1411

Offences against person and reputation - Assaults - Intention or mens rea - [See second Criminal Law - Topic 113 ].

Criminal Law - Topic 1420

Offences against person and reputation - Assaults - Defence - Self-defence - The accused young person was taken to hospital by ambulance - He was unconscious and was treated for excessive alcohol consumption - A discussion took place near his bed about inserting a catheter to collect his urine - A nurse lifted the sheet from the accused's feet to his chest to perform the procedure (his clothes had previously been removed) - The accused erupted off the bed yelling "what the fuck are you doing?" - When he did so, the nurse was hit across the left cheek - The accused grabbed the nurse by her wrists and pushed her toward the corner with his fist cocked - The accused stated that he had heard what the medical staff had been saying and he yelled for them to get away from him - Security intervened - The accused was charged with assaulting the nurse - The Alberta Provincial Court held that self-defence had been established under s. 34(1) of the Criminal Code and it found the accused not guilty - The accused was unlawfully assaulted (the nurse intentionally applied force to him without his consent) - Even if the nurse's actions did not constitute an unlawful assault, the accused held an honest but mistaken belief that an assault was being perpetrated upon him and his belief was reasonable - The accused did not provoke the assault, the Crown did not prove that the accused intended to cause death or grievous bodily harm, and the force used by the accused was no more than was necessary to defend himself - See paragraphs 39 to 81.

Cases Noticed:

R. v. Rabey (1980), 32 N.R. 451; 15 C.R.(3d) 225 (S.C.C.), refd to. [para. 23].

R. v. Parks (1992), 140 N.R. 161; 55 O.A.C. 241; 15 C.R.(4th) 289 (S.C.C.), refd to. [para. 24].

R. v. Stone (B.T.) (1999), 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1; 24 C.R.(5th) 1 (S.C.C.), refd to. [para. 25].

R. v. Latour, [1951] S.C.R. 19, refd to. [para. 31].

R. v. Linney (1977), 13 N.R. 217; 32 C.C.C.(2d) 294 (S.C.C.), refd to. [para. 31].

R. v. Bergstrom (1980), 2 Man.R.(2d) 121; 13 C.R.(3d) 342 (C.A.), refd to. [para. 31].

R. v. Brisson (1982), 44 N.R. 1; 29 C.R.(3d) 289 (S.C.C.), refd to. [para. 31].

R. v. Perka, Nelson, Hines and Johnson (1984), 55 N.R. 1; 42 C.R.(3d) 113 (S.C.C.), refd to. [para. 31].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 26 C.R.(4th) 1, refd to. [para. 31].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349, refd to. [para. 32].

R. v. King, [1962] S.C.R. 746, refd to. [para. 33].

R. v. McIntosh (B.B.) (1995), 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 40].

R. v. Fontaine (J.) (2004), 318 N.R. 371; 18 C.R.(6th) 203 (S.C.C.), refd to. [para. 41].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 41].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1, refd to. [para. 46].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 55].

R. v. Pétel (C.) (1994), 162 N.R. 137; 59 Q.A.C. 81; 87 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 56].

R. v. Deegan (1979), 17 A.R. 187; 49 C.C.C.(2d) 417 (C.A.), refd to. [para. 69].

R. v. Grandin (D.T.) (2001), 152 B.C.A.C. 228; 250 W.A.C. 228; 154 C.C.C.(3d) 408 (C.A.), refd to. [para. 76].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 33.1 [para. 21]; sect. 34(1), sect. 37 [para. 22].

Counsel:

D. Hill, for the Crown;

C. Seto, for the accused

This matter was heard on January 25 and February 23, 2006, before Dalton, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on July 10, 2006.